An Analysis of 'O'Brien v. Port Authority'

In a recent decision, O’Brien v. Port Authority of New York and New Jersey, 29 N.Y.3d 27(2017), a divided Court of Appeals stepped into a battle of the experts in a construction site accident case. Several articles have been written about this case. Contrary to the analysis of some defense counsel, this decision has not resulted in any new law on the scope of Labor Law §240(1). It is a decision narrowly limited to its facts, involving a worker who fell while descending a wet temporary external staircase in the rain. There were conflicting expert opinions as to whether there were structural deficiencies in the stairway, which made it unsuitable as a safety device, or whether it was a proper device which was just wet. The dissent opined that the fact that plaintiff fell down the slippery stairs was sufficient to establish a statutory violation. However, the majority found issues of fact raised by the experts as to whether this temporary external staircase, which did not collapse or break but may have only been wet, was an adequate safety device. There is no basis to attribute significance to the decision beyond its specific facts or to conclude, as certain defense counsel have, that experts should be retained by defendants in all cases involving §240(1) to examine scaffolds and ladders to provide opinions on the adequacy of the safety device.

Background

In O’Brien, plaintiff was a worker at the 1 World Trade Center site and responsible for the maintenance of welding equipment. At the time of his accident, he was descending a temporary exterior metal staircase from one work level to another. He testified at his deposition that this metal staircase was wet due to exposure to the elements, that his foot slipped off the tread of the top step and that he fell down the stairs. He further testified that the stairs were “steep, slippery and smooth on the edges.”Although his right hand was on the handrail, he could not maintain his grip because the handrail was wet. A co-worker confirmed that the stairway was wet. Plaintiff’s expert opined that the stairs were worn-down, slippery, had diminished anti-slip properties and did not comply with established principles of construction safety. These contentions were used by plaintiff to support a cause of action under Labor Law §200, based upon the assertion that defendants had constructive notice of the dangers of this device. In opposition, defendants’ expert opined that the temporary staircase complied with industry standards for indoor and outdoor use, and did not require further anti-skid protection.